STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-809

)

ELLEN APPENFELDER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on July 18, 1979, in St. Petersburg, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The parties stipulated to the late filing of proposed findings of fact on or before Wednesday, August 22, 1979. The Petitioner's proposed findings of fact and a letter from the Respondent's Counsel were received on August 23, 1979, and are deemed timely filed.

Prior to the hearing, the parties entered into a stipulation which was introduced and made a part of the record. This Stipulation between the Petitioner and the Respondent recites as follows:

1. Petitioner has filed an instrument entitled Petition for the Revocation of Teacher's Certificate seeking a revocation of the Respondent's Florida Teacher's Certificate.

   
   

2. Respondent has in response to said Petitioner filed an instrument entitled Declaration of Surrender of Teacher's Certificate, dated March 16, 1979, declaring a surrender of her Florida Teacher's Certificate and requesting suspension of her certificate for a period of three (3) years.

   
   

3. This matter has been assigned to a hearing officer for an administrative hearing as the result of the recent order of another Division of Administrative Hearings Hearing Officer, declaring the Professional Practices Council's rules providing for hearings before three-member teacher panels to be an unlawful delegation of legislative authority.

   
   

4. The parties are desirous of having this matter promptly and expeditiously heard and determined.

   
   

5. The parties stipulate to this matter being submitted to the Honorable Stephen F. Dean, Hearing Officer, of Administrative Hearings for administrative review and preparation of Recommended Order to the State Board of Education of Florida disposing of this cause.

   
   

6. Respondent pleads no contest, or nolo contendere, to the allegations contained in the Petitioner for the Revocation of Teacher's Certificate filed in this action.

7. Petitioner and Respondent stipulate to the suspension of the Respondent's Florida Teacher's Certificate for a period of three (3) years, effective upon entry of the Final Order of the State Board of Education in this cause.

   
   

8. The parties understand and acknowledge that this Stipulation may be accepted or rejected by the State Board of Education, that the State Board of Education is in no way bound to accept the period of suspension stipulated to herein or recommended by the Hearing Officer, and may make its own determination of the appropriate period of suspension or revocation of Respondent's Florida Teacher's Certificate upon its own review of the record in this matter.

   
   

9. The parties stipulate that at the administrative hearing to be held in this matter before the Honorable Stephen F. Dean the Petitioner may offer prior decisions of the Professional Practices Council cases involving similar allegations as a guide to the determination of the appropriate disposition of this cause, and that Respondent may offer evidence in mitigation of the penalty to be arrived at.

By virtue of the Stipulation, the only viable issue is the penalty to be assessed.

APPEARANCES

For Petitioner: J. David Holder, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

For Respondent: Ben Kay, Esquire

30 Sixth Street, North, Suite 307 St. Petersburg, Florida 33701

FINDINGS OF FACT

1. Based upon Respondent's plea of nolo contendere to the Administrative Complaint, the following facts are deemed admitted:

   
   

   1. While employed as a teacher at Northeast Senior High School, the Respondent, ELLEN APPENFELDER, allowed two (2) male students to stay overnight with her in her apartment on one or more occasions during June and early July of 1978.

      
      

   2. The Respondent, ELLEN APPENFELDER, permitted students to consume alcoholic beverages at her apartment and in her presence on one or more occasions during the last spring (sic) and/or early summer of 1978.

      
      

   3. The Respondent, ELLEN APPENFELDER, was counseled on two (2) or more occasions by the Principal and Athletic Director of Northeast Senior High School about her relationship with a male student in the school, and that the relationship was causing problems in the school and in the community, and that it should be terminated. These conferences occurred during the 1977-78 school year.

   
   

2. The Respondent submitted testimony and evidence in mitigation which show that she was considered by her colleagues to be a good disciplinarian. She was not considered by other teachers to be soft on student misbehavior. Respondent did have a history of personal involvement with students and their

   activities. She was a faculty advisor to the cheerleading squad at Northeast Senior High School. She and her husband sponsored social events for the high school's cheerleading and basketball teams, to include dinners at her parents' house. As a result of these activities, she and her husband became aware of the personal and academic problems of a male student, who was an outstanding athlete on the basketball team. Both the Respondent and her husband attempted to assist this student with his problems. The Respondent's father and husband employed this student for a period of time to assist him. This student spent the weekend with the Respondent and her husband on more than one occasion. The relationship and interest with this student was not unique. The Respondent had also extended herself to assist a member of the cheerleading team, who was having personal difficulties as a result of her parents' divorce. In another instance, the Respondent took a former student to Miami in order that she could enroll in one of the area's airline stewardess programs. This depth of interest continued her family's interest and involvement in the school system and students for which her father had received several civic awards.

   
   

3. In January of 1978, the Respondent and her husband experienced marital problems, which resulted in their abrupt separation. This separation continued until after July 4, 1978. During their separation, the Respondent continued her interest and involvement with the student whom she and her husband had befriended. This student and a companion were permitted to spend the night at the Respondent's residence. This student also visited the Respondent's husband in an adjoining community during the period of their separation.

   
   

4. The Respondent does not drink. She admitted in her testimony that alcoholic beverages were consumed in her presence, but stated that to her knowledge no one who was not of legal age ever consumed alcoholic beverages in her presence. Further, the Respondent had no personal knowledge of the status as a student of one of the two (2) individuals involved.

   
   

5. The material allegations of Paragraph 3 of the Administrative Complaint do not constitute a violation of any of the statutes or rules cited in the Administrative Complaint. The Respondent's testimony shows that the "counseling" which she received was an informal suggestion that she lessen her involvement with a particular student because of student jealousies. There is no evidence that the Respondent failed to follow the lawful orders and directions of any of her superiors within the school system.

   
   

6. The Respondent is now aware that her activities gave the appearance of impropriety, subjecting her to potential criticism and notoriety and thereby diminishing her effectiveness as an instructor. She is further aware that her tendency to become a counselor to students as opposed to a teacher resulted in the situation which formed the basis for the allegations in the Administrative Complaint.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action pursuant to the provisions of Section 120.57(1), Florida Statutes.

   
   

8. The Respondent has pled nolo contendere to the alleged violations of Section 231.09 and 231.28, Florida Statutes, and Rules 6A-4.37, 6B-1, and 6B-5, Florida Administrative Code. A plea of nolo contendere constitutes a plea of guilty to the charges of the Administrative Complaint for the purposes of this proceeding.

9. Section 231.28, supra, which provides for the suspension or revocation of teaching certificates, does not provide that violation of Section 231.09, supra, is a basis for revocation or suspension. Section 231.28(1), supra, provides that a teaching certificate may be revoked or suspended provided it can be shown that the individual obtained a teaching certificate by fraud, is incompetent to teach or perform his (or her) duties, has been guilty of gross immorality or an act involving moral turpitude, has had his (or her) certificate revoked in another state, has been convicted of a misdemeanor, felony or any other criminal charge, or has been found guilty of personal conduct which seriously reduces his (or her) effectiveness as an employee of the school board, or has otherwise violated provisions of law the penalty for which is the revocation of the teaching certificate, or his (or her) refusal to comply with the regulations of the State Board of Education or the board by which he (or she) is employed. Chapter 231, Florida Statutes, does not provide any penalty for the violation of Section 231.09, Florida Statutes. The conduct which the Respondent has admitted would subject her to public criticism and notoriety, seriously reducing her effectiveness as an employee; however, in considering the penalty for the violation of Section 231.28(1), supra, it is appropriate to distinguish between immoral conduct and conduct which gives the appearance of wrongdoing.

   
   

10. The Administrative Complaint does not allege that the Respondent is guilty of gross immorality or an act involving moral turpitude. By her plea, the Respondent has not admitted any immoral conduct, and the Petitioner has presented no evidence of such conduct.

    
    

11. There is no rule or statute which places an affirmative obligation upon a teacher to forbid the drinking of alcoholic beverages in his or her presence by individuals who are of legal age. No evidence has been presented that the Respondent permitted any minor student to drink any alcoholic beverage in her presence. The allegations of the Administrative Complaint limit themselves to students drinking in the Respondent's presence without regard to their age. The legislature of the State of Florida has declared that an individual who is 18 years of age, without regard to his status as a student or non-student, may legally purchase and consume alcoholic beverages within this State. The evidence in this case reveals that the consumption of alcoholic beverages did not take place on any property owned or controlled by the school board, or at any function sponsored by or associated with said school board. While the school board and the Board of Education have a legitimate interest in controlling the conduct of students while on school property and at events sponsored by a school board, control of students or teachers cannot be extended beyond reasonable limits.

    
    

12. Similarly, associations between students and teachers may not be legislated as long as these relationships are not immoral or contrary to the teacher's obligation to remain fair and impartial to all students. To say that an individual, by virtue of being a teacher in the public schools of this State and holding a teaching certificate issued by the Board of Education, is restricted in whom he may invite into his home, restricted in the conduct he may permit in his home by adults, and restricted in the associations he may have is a violation of his First Amendment privileges in the absence of any showing of immoral conduct. There is nothing contained in the statutes or rules cited in this case which form a basis for the extension of such control to such a constitutionally impermissible degree.

13. This case is distinguishable from cases in which conduct which is immoral was admitted or proven. In this case, the allegations insinuate immoral conduct but fall short of stating facts that would constitute immoral conduct. Similarly, the charged violations do not allege immoral conduct. The charges to which the Respondent pled were failure to set a proper example and seriously reduced effectiveness.

    
    

14. The Respondent realizes and admits that her effectiveness has been seriously reduced by her conduct, which gave the appearance of impropriety. Initially, the Respondent was angered and confused by these allegations, apparently believing that a cloak of piety exists around teachers, doctors, priests, and similar paragons of virtue in our society. She has learned and acknowledges that the society which expects teachers to set an example in their personal conduct and maintain a lively interest and concern in students and their problems will also expect the worst of teachers if they engage in conduct which gives even the appearance of wrongdoing.

    
    

15. Although Paragraph 7 of the Stipulation references a three-year suspension effective upon entry of final order in this cause, Paragraph 8 of the Stipulation acknowledges that the State Board of Education (and thereby the Hearing Officer) is in no way bound to accept the period of suspension to which the parties have stipulated.

RECOMMENDATION

Based upon the Stipulation, the facts submitted in mitigation, and consideration of the proposed findings of fact, the Hearing Officer recommends that the certificate of the Respondent be suspended for a period of one (1) year.

DONE and ORDERED this 7th day of September, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

J. David Holder, Esquire

110 North Magnolia Drive Suite 224

Tallahassee, Florida 32301

Ben Kay, Esquire

30 Sixth Street North Suite 307

St. Petersburg, Florida 33701

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA

IN RE: ELLEN APPENFELDER DOAH CASE NO. 79-809

/

ORDER

THIS CAUSE came on to be heard before the State Board of Education, duly assembled, upon the Petition of Lynnl Guettler as Chairman of the Professional Practices Council for the revocation of the teacher's certificate of the Respondent, ELLEN APPENFELDER, Department of Education Number 322820.

This Board having reviewed the findings and recommendation of the Hearing Officer of the Division of Administrative Hearings and the entire record; and

It appearing that the Respondent has been granted all procedural and other constitutional rights in the premises, and the Board having had due deliberation thereon, the Board makes the following findings of fact and conclusions of law:

ELLEN APPENFELDER presently holds Florida teacher's certificate number 322820, valid until June 30, 1986. The Board adopts the Findings of Fact and Conclusions of Law contained in the Recommended Order of the Hearing Officer for the Division of Administrative Hearings as its own, which is by reference made a part hereof, but rejects the hearing officer's recommended penalty and accepts the offer of the Respondent to surrender her teaching certificate for a period of three years revocation.

ORDERED AND ADJUDGED that the teaching certificate of ELLEN APPENFELDER be revoked for a period of three years.

DONE at the State Board of Education meeting in open session at Tallahassee, Florida, on the 20th day of November, 1979

EXECUTED AND RENDERED on this 4th day of December, 1979.

Bob Graham, Governor; Chairman

George Firestone, Secretary of State

Jim Smith, Attorney General

Gerald A. Lewis, Comptroller

Bill Gunter, Treasurer (absent)

Ralph D. Turlington, Commissioner of Education, Secretary-Executive Officer

Doyle Conner,

Commissioner of Agriculture

As and constituting the State Board of Education of Florida as assembled for the purposes herein.

Duly recorded in the official records of the State Board of Education of Florida.

I HEREBY CERTIFY that copies of the foregoing Order in this matter were mailed to Ben Kay, Esquire, J. David Holder, Esquire, Mr. Stephen F. Dean, Hearing Officer, Ms. Ellen Appenfelder, and Dr. Douglas O. McBriarty, on this 5th day of December, 1979.

Hugh Ingram, Administrator Professional Practices Council

Docket for Case No: 79-000809

Orders for Case No: 79-000809